State Of Washington, V Sandra Lee Johnston ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
July 26, 2016
DIVISION II
STATE OF WASHINGTON, No. 46952-9-II
Respondent,
v.
SANDRA LEE JOHNSTON, UNPUBLISHED OPINION
Appellant.
LEE, J. — Sandra Lee Johnston was convicted of two counts of possession of a controlled
substance after morphine and hydromorphone were found in her purse. At trial, Johnston did not
contest her possession of the drugs. Instead, she asserted the affirmative defense of unwitting
possession. In support of the defense, she sought to testify that she was allergic to morphine. The
trial court excluded the evidence on relevancy grounds. Johnston appeals, arguing the trial court
erred in excluding the evidence that she was allergic to morphine. We hold that the trial court did
not abuse its discretion in excluding the evidence. Accordingly, we affirm.
FACTS
On December 11, 2013, Johnston, who was under active supervision with the Department
of Corrections, reported to her community corrections officer, Holly Sinn. Johnston knew that
anything she brought with her when she reported was subject to search by Sinn.
When Johnston reported on December 11, Sinn searched Johnston’s purse. Sinn found
three small peach-colored pills and one purple-colored pill in the search. The pills were tested by
the Washington State Patrol Crime Lab, which determined the peach-colored pills contained
hydromorphone and the purple-colored pill contained morphine.
No. 46952-9-II
Johnston denied knowing the pills were in her purse. Instead, she claimed that the pills
must have been on a shelf with other items that she hastily swept into her bag earlier that day.
Apparently, Johnston and her fiancé, Steve Kingston, had moved out of the basement of a house
early that day. Yvonne Burdwood rented the basement to Johnston and Kingston. Johnston and
Kingston were in a hurry because they needed to be moved out that day and make it to Johnston’s
appointment with Sinn on time.
Before Johnston and Kingston moved into the basement, the basement had been occupied
by another friend of Burdwood’s, Rhonda Goans. Goans was very ill and Burdwood had moved
her upstairs to be able to better care for her. Part of caring for Goans required Burdwood to
administer pills to Goans. The basement had been left “cluttered” and “a mess” with various items
left on the shelves when Johnston and Kingston moved in. Verbatim Report of Proceedings (VRP)
at 127. In their effort to move out as fast as possible, Johnston “swe[pt] stuff off the shelves into
[her] purse, and [Kingston] dumped the drawers into the . . . suitcases.” VRP at 129.
Johnston was charged with two counts of possession of a controlled substance. The first
count alleged possession of morphine and the second alleged possession of hydromorphone.
At trial, Johnston asserted the affirmative defense of unwitting possession. Johnston
denied knowing the pills were in her bag. Instead, she posited that the pills must have been on the
shelves with other items that she hastily swept into her bag earlier that day. In addition, Johnston
sought to admit evidence that she was allergic to morphine. Johnston argued that “the relevance
is that if you’re allergic to something, it would be less likely to knowingly possess that. What
would be the purpose?” VRP at 63. Johnston stated that she was not trying to bring testimony of
her allergy in as character evidence, but instead as “commonsense relevance.” VRP at 65. The
trial court excluded the evidence, ruling:
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I’m satisfied that there is no relevance to whether or not there is an allergy in this
case. We’re talking about either possession or unwitting possession, and whether
or not there’s an allergy doesn’t really play into the actual possession aspect of it.
The likelihood of use is different than possession, so I am not finding there is any
relevance, so that will be excluded from testimony.
VRP at 106.
A jury convicted Johnston on both counts of possession of a controlled substance. Johnston
appeals.
ANALYSIS
Johnston argues that the trial court abused its discretion in excluding evidence that she was
allergic to morphine. Johnston also argues that the trial court’s exclusion of her allergy to
morphine denied her of her constitutional right to present a defense. We hold that the trial court
did not abuse its discretion in excluding the evidence.
We review decisions by the trial court to admit or exclude evidence for abuse of discretion.
City of Kennewick v. Day, 142 Wn.2d 1, 5, 11 P.3d 304 (2000). The trial court abuses its discretion
if its “‘discretion [is] manifestly unreasonable, or exercised on untenable grounds, or for untenable
reasons.’” Id. at 5 (alteration in original) (quoting State v. McDonald, 138 Wn.2d 680, 696, 981
P.2d 443 (1999)).
Evidence is relevant if it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence.” ER 401. Relevant evidence is generally admissible. ER 402. “The
threshold to admit relevant evidence is very low. Even minimally relevant evidence is admissible.”
State v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002).
Once the State has established prima facie evidence that the defendant possessed a
controlled substance, the defendant may affirmatively assert that his or her possession was
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No. 46952-9-II
“unwitting.” State v. Staley, 123 Wn.2d 794, 799, 872 P.2d 502 (1994). The defense of unwitting
possession can be established by showing that the defendant did not know he or she was in
possession of a controlled substance or by showing that the defendant did not know the nature of
the substance he or she possessed. Id.Here, the trial court held that “whether or not there’s an allergy doesn’t really play into the
actual possession of it. The likelihood of use is different than possession.” VRP at 106. We agree
that likelihood of use is different than possession. Thus, evidence of an allergy to morphine was
not relevant to a possession of a controlled substance charge. Therefore, in light of the record
before us, we hold that the trial court did not abuse its discretion in excluding the evidence.
Even assuming the evidence of Johnston’s allergy is minimally relevant, any error in
excluding the evidence is harmless because Johnston presented other evidence showing that she
had an incentive to not possess the drugs—she knew her purse was subject to search by Sinn—but
the jury rejected her unwitting possession defense anyway. Despite her arguments that her
constitutional rights were violated, Johnston’s challenge is to the trial court’s discretionary ruling
to admit or exclude evidence, and therefore, we apply the less stringent harmless error rule that the
error is not prejudicial unless, within reasonable probabilities, the outcome of the trial would have
been materially affected had the error not occurred. State v. Barry, 183 Wn.2d 297, 303, 352 P.3d
161 (2015).
Here, Johnston wanted to present evidence of her alleged allergy to show her possession
of the drugs was unwitting. But one can be allergic to a substance and still possess it. Also, the
jury heard testimony from Johnston that she knew when she reported to Sinn, that she and her
purse would be subject to search. So the jury already knew that Johnston had a real incentive to
not possess the drugs and still found that her possession was not unwitting. Therefore, we hold
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that evidence of Johnston’s alleged allergy to morphine does not create a reasonable probability
that the outcome of her trial would have been different, and any error in excluding the evidence is
harmless.
We affirm.
A majority of this panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Lee, J.
We concur:
Worswick, P.J.
Johanson, J.
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